Benjamin Wittes

In January 2010, the Governance Studies department at Brookings released a paper entitled “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.” (http://ssrn.com/abstract=1540601) In that paper, two of the present authors sought to describe the enormous diversity of opinion among the lower court judges to whom the inactivity of the Supreme Court, Congress, and the executive branch had effectively delegated the task of writing the law of detention. In the year that has followed, a great deal has changed. A number of appellate decisions have given the lower court considerable guidance on questions that were seriously contested when we published the original paper. Some of the parameters of the law of detention that were altogether unsettled then have come into sharper focus as a result. And lower court judges have, to some degree, fallen into line. On other issues, by contrast, the law remains more or less as it was then, uncertain and subject to greatly divergent approaches by district judges with profoundly differing instincts. While in some areas, in other words, the judges have developed relatively clear rules, in others they continue to disagree. And, as then, the D.C. Circuit may not prove to be the final word. Its decisions may be merely interim steps on the way to Supreme Court consideration—meaning that the entire law of detention as it stands now could prove to be a kind of draft, a draft whose parameters remain sharply disputed and that might be torn up at any time.

The original paper is, in many respects, thus an out-of-date account of this draft—no longer an accurate guide to what is contested and what is at least tentatively resolved. Rather than simply produce a new edition of the paper, one that would just as quickly become obsolete, we decided to adapt it into a more dynamic document—one that we can update in real time as the law of detention emerges further and to which we can add additional sections covering issues we ignored the first time around.

The sections of this report are adapted from those of the original paper, on which they significantly expand, and we expect to add additional sections as the case law develops. In some areas, the development has been, and will continue to be, relatively rapid. In other areas, things change slowly. The goal is to provide, at all times, a reasonably up-to-date account of how the law of detention is changing and where it is heading on each of the bewildering array of questions on which individual judges and combinations of appellate judges are picking and choosing among the possible directions of the law.

This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Court’s decisions recognizing federal-court jurisdiction over Guantánamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary. In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges’ approaches to the following questions:

• the burden of proof;
• the substantive scope of the government’s detention power;
• the question of whether a detainee’s relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events;
• whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence;
• the use of hearsay evidence;
• the use of evidence alleged to result from coercion; and
• the government’s use of a “mosaic theory” of evidentiary interpretation.

Over the past three years, significant attention has been paid to how the D.C. courts would implement the Supreme Court’s mandate in Boumediene v. Bush that the Guantanamo habeas cases go forward in the absence of any statutory authority, especially given the Court’s express delegation to the lower courts of the power to fashion procedural, evidentiary, and even substantive rules to govern the detainees’ claims. The result has been, by any account, a remarkably interesting and complex body of case law. But increasingly in recent months, these cases have also come to inform a heated debate over the relationship between the D.C. Circuit and Boumediene itself.

In particular, a number of scholars, civil liberties groups, and detainee lawyers (not to mention the editorial pages of various major newspapers) have accused the D.C. Circuit in general—and some of its judges in particular—of actively subverting Boumediene by adopting holdings and reaching results that have both the intent and the effect of vitiating the Supreme Court’s 2008 decision. In contrast, defenders of the work of the court of appeals have stressed both the extent to which Boumediene necessarily left these issues open to judicial resolution, and the near-unanimity of the D.C. Circuit in virtually all of the post-Boumediene cases—especially in its decisions on the “merits.” Indeed, even if some of the D.C. Circuit’s judges have been outspoken in their criticisms of the Supreme Court, the fact remains that few of the court’s post-Boumediene opinions have elicited published dissents, and none have successfully been taken en banc. And with one equivocal exception, the Supreme Court has denied certiorari in every post-Boumediene Guantánamo case it has thus far been asked to hear.

In the following symposium essay, I aim to look more carefully at the parameters of this debate, and the charge that the D.C. Circuit has spent the better part of the past three years subverting Boumediene. The essay contrasts the analysis and holdings of the court of appeals in some of its key decisions with the Supreme Court’s instructions—such as they were—in Boumediene, Hamdi, and, to a lesser degree, Hamdan. As I hope to show (and as may well not seem surprising), the answer to this charge lies somewhere in the middle. Although there are no holdings to which one can point as “proof” that the D.C. Circuit has refused to take the Supreme Court seriously, the court’s analysis as to evidentiary issues and the burden of proof, in particular, reveals some judges who read the Supreme Court’s work in this field for as little as it’s worth—if not less. And in public speeches and concurrences, senior D.C. Circuit Judges A. Raymond Randolph and Laurence Silberman have gone even further, belittling the Supreme Court for what Randolph referred to as the “mess” they made, and what Silberman described as a “charade,” prompted by the Court’s “defiant—if only theoretical—assertion of judicial supremacy” in Boumediene.

At the same time, some of the court’s holdings in its more controversial decisions, especially those involving the transfer or release of the Uighurs, can be criticized, if at all, as failures of imagination or misreadings of Supreme Court precedent (as controlling issues that may still be open). Whatever one’s view of the merits of these outcomes, it seems unfair to claim that, in these contexts, the D.C. Circuit is subverting Supreme Court rules that simply don’t exist.

Ultimately, my thesis is that while it smacks of hyperbole to refer to the D.C. Circuit as being engaged in a collective effort to subvert Boumediene, it is equally unconvincing to assert that the entire court of appeals has faithfully administered the Supreme Court’s commands in these cases. Instead, the most troubling aspects of the D.C. Circuit’s post-Boumediene jurisprudence can all be traced to some combination of four jurists. Whether the rest of the D.C. Circuit is reaching the correct results in other cases is beyond the ambit of this essay; for present purposes, this essay’s central conclusion is that, in their opinions and their rhetoric, these four judges are effectively fighting a rear-guard action while their colleagues coalesce around substantive and procedural rules that are materially consistent with what little guidance the Supreme Court has provided in these cases—and, as importantly, that have the general endorsement of virtually all of the district judges and the executive branch.

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